Columbus City Schools' closed meetings questioned

The Columbus Board of Education and other district officials have gone into super-secret mode since news broke in June that employees have altered millions of attendance records.

Bill Bush, The Columbus Dispatch

The Columbus Board of Education and other district officials have gone into super-secret mode since news broke in June that employees have altered millions of attendance records.

The board has closed meetings under a novel and untested legal theory, and district officials have found questionable ways to deny access to public records. Some experts say the district is stretching the law, if not breaking it, when it comes to Ohio’s requirement to conduct public business in public.

Three experts on Ohio’s Open Meetings Act say the explanation that the board has used to close meetings and keep information from the public is legally suspect at best and blatantly illegal at worst.

The school board has closed public meetings repeatedly to talk with a private attorney, Robert “ Buzz” Trafford, concerning unspecified topics related to data-rigging allegations. The district says it is closing the meetings to discuss “matters required to be kept confidential by federal law or regulations or state statutes.”

Pressed to explain, the attorney said the board is closing meetings for reasons of “ attorney-client privilege.” However, a state appeals court ruling on this issue did not include attorney-client privilege as an exception. And the experts say it isn’t an exception allowed under the Ohio Open Meetings law.Individuals have the right to meet with an attorney in private, and public bodies have the right to keep certain legal documents private, but experts say the open-meetings law does not give public bodies the blanket right to a closed meeting anytime they want to talk with a lawyer.

Yet the Columbus Board of Education has used that excuse to close five meetings since Aug. 7.

The reason is sufficient to close the meetings, said Larry Braverman, the district’s general counsel, in an email to The Dispatch.

Attorney Mark Weaver disagrees. While with the state attorney general’s office from 1995 to 1999, Weaver wrote eight editions of the state’s Open Government Resource Manual, widely viewed as the bible of public meetings and records laws.

“Under Ohio law, attorney-client discussions are not required to be kept confidential,” Weaver said. “It’s permissive, not mandatory.”In fact, the board did partially waive its attorney-client privilege in early August so it could turn over evidence in the data-rigging investigation by the state auditor. That makes the district’s argument even weaker, Weaver said.

The board went into a closed meeting — citing attorney-client privilege — to discuss waiving that privilege for documents concerning the data scandal produced before Aug. 3. The Dispatch requested those documents after the board waived attorney-client protection. A month later, Trafford refused to release them unless the newspaper agreed in writing not to challenge the board’s action to close the meeting.

If a court were to find that the board closed the meeting illegally, he said, it could automatically void any actions taken as a result of the illegal meeting. In this case, the only action was to waive attorney-client privilege. The board emerged from that closed session with a two-page resolution already in hand, and it approved the waiver with little debate.

The Dispatch refused to agree to Trafford’s request and demanded the records be released immediately.

The district released them late Wednesday.Told of Trafford’s attempt to leverage an agreement for the release of public documents, Ohio University professor Thomas Hodson said, “That’s sort of incredible.”

The usual way a board is allowed to meet with its attorney in private is to discuss “pending or imminent court action,” said Hodson, who is a visiting trial judge for the Ohio Supreme Court and an expert in the state’s Sunshine laws. But there is no pending court case. In fact, the board has never said why it hired Trafford, or what he’s doing for it. Thus far, it hasn’t released the contract guiding his work and pay.

The board can’t close the meeting simply because the person they’re talking with is an attorney, said Tim Smith, a journalism professor at Kent State University who is also an attorney specializing in Sunshine laws.

“Put simply, it isn’t permitted,” Smith said.

In addition to closing meetings, district officials also have denied public-records requests on documents that they did have, according to the information released Wednesday by Trafford:

• When The Dispatch requested emails between the now-reassigned data chief, Steve Tankovich, and principals, a data analyst retrieved them and sent them to district spokesman Jeff Warner, emails show.

But Warner emailed back to the analyst asking whether there was “a way to isolate only those emails” that Tankovich sent to the entire principal staff in one message, because that’s what the newspaper had technically requested. There weren’t any that met that narrow definition, and the district informed the newspaper that none was found.

When a reporter asked Warner to check for emails to individual principals, Warner agreed, but he never responded.

Warner yesterday took full responsibility for failing to deliver the documents, saying they became lost in the volume of records requests.

“I just missed it,” Warner said. “It certainly was not intentional.”

• When The Dispatch asked for “severance packages” given to former employees, the district said there was only one. But when the request was resubmitted to include “any separation agreement,” district officials said they did have more of those — but they still haven’t provided them.

• When The Dispatch asked on Aug. 1 whether any employee — and specifically general counsel Braverman — had been subpoenaed by the state auditor, the district said no. Yet documents released on Wednesday show that Braverman had been subpoenaed on July 18.

Braverman said the request had asked about district employees who were subpoenaed “to be interviewed.” The subpoena released on Wednesday shows that it required Braverman to appear in person unless he produced the requested documents by Aug. 1, which he did.

Dispatch reporter Jennifer Smith Richards contributed to this story.

bbush@dispatch.com

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